Supreme Court rules prisoners with capped sentences can still be considered for parole

Kathmandu, October 25

Nepal’s Supreme Court has ruled that prisoners benefiting from the statutory cap on cumulative imprisonment cannot be denied parole solely because they have received that benefit.

Overturning a decision by the Federal Probation and Parole Board, the court said the cap on imprisonment is a mandatory legal provision, not a concession granted to prisoners, and therefore cannot by itself be used as a reason to deny parole.

The ruling came in response to a petition filed by Bikram Majhi, who was sentenced to prison terms in two separate drug-related cases.

The court clarified that parole is not an unconditional right for prisoners. However, it said authorities cannot refuse the facility to eligible prisoners without a proper legal basis.

How the case arose

Police arrested Mukesh Kumar Yadav on January 12, 2019, and seized brown heroin from him. Yadav told investigators that Bikram Majhi, a resident of Shivasatakshi in Jhapa, had supplied him with the drugs.

Police arrested Majhi the following day near Hotel Kankai in Jhapa, recovering brown heroin and a drug known as amphetamine from his possession. Two separate cases were subsequently filed against him.

The Kathmandu District Court sentenced Majhi to 10 years in prison in one case and five years in the other. However, under Section 36(1)(a) of the Criminal Offences (Sentencing and Execution) Act, 2017, he was required to serve only the maximum term of 10 years rather than the combined 15 years.

This provision, commonly known as the cap on imprisonment, applies when a person receives prison sentences in multiple cases and the longer sentence is equal to or greater than the subsequent sentence. In such circumstances, the longer term is enforced rather than adding the sentences together.

Majhi had spent approximately seven and a half years in custody, including pre-trial detention, after his arrest on January 12, 2019.

Citing his good conduct, the Nakhu Prison Office recommended that he be considered for parole and forwarded the matter to the Federal Probation and Parole Board.

Section 29 of the same act allows parole for offenders sentenced to more than one year in prison who have served two-thirds of their sentence and demonstrated good conduct. Those granted parole may serve the remainder of their sentence in the community, subject to conditions and supervision by parole officers.

However, on June 17, the board, led by the attorney general, decided not to recommend parole for Majhi, reasoning that he had already benefited from the cap on imprisonment and should not receive what it considered an additional concession.

Court distinguishes sentence caps from remission

The Supreme Court rejected Majhi’s claim that he was entitled to parole and clarified that parole is not a mandatory entitlement available to every prisoner who meets the statutory criteria.

In the full text of its ruling, the court said the law does not establish parole as a facility that prisoners can demand as an automatic right.

Nevertheless, the court questioned the board’s decision to deny Majhi parole solely because his sentence had been capped.

The judgment noted that Majhi met the three statutory conditions for parole: he had been sentenced to more than one year in prison, had served two-thirds of his sentence and had demonstrated good conduct. The offences for which he was convicted were also not included on the law’s negative list of offences excluded from parole.

The court emphasised that a sentence cap and remission of imprisonment are legally distinct concepts.

“The cap on imprisonment is neither a matter of the wishes of a court, body or official, nor a matter of judicial choice. It is a mandatory statutory provision,” Justices Dr Nahakul Subedi and Nityananda Pandey stated in the full text of the judgment. “The cap on imprisonment and the facility of remission are two separate matters. Therefore, interpreting the cap on imprisonment as a concession in the form of a reduction of sentence is neither just nor logical.”

The court said the cap exists because the law requires it, rather than because a prisoner has been granted a special benefit. Authorities therefore cannot treat it as an additional concession when assessing parole eligibility.

Eligible prisoners cannot be refused without valid reasons

The court further clarified that although parole is not an absolute right, the discretion to grant it cannot be exercised arbitrarily.

“If a prisoner who fulfils the preconditions set by the law and the standards is denied parole without a lawful and reasonable justification, the facility effectively assumes the character of a right,” the full text stated.

The court also noted that the 2023 standards governing the placement of prisoners on probation and parole do not prohibit parole for prisoners whose sentences have been capped.

It found that the decision to deny Majhi parole on that basis was inconsistent with the law and the applicable standards and was not supported by an adequate legal justification.

On June 17, the Supreme Court overturned the decision of the Office of the Attorney General concerning Majhi and issued a mandamus directing the authorities to reassess his case and make an appropriate decision.

The full text of the judgment, delivered on September 11, was made public recently.

The ruling does not automatically grant Majhi parole. Instead, it requires the authorities to reconsider his eligibility without treating the cap on imprisonment as a standalone ground for refusal.

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